New drone registration and accreditation laws have the potential to expose drone operators to greater liability by increasing the ability of Civil Aviation Safety Authority (CASA) to trace a wayward drone back to its operator.
Changes to the Civil Aviation Safety Regulations 1998 (CASR)1 will soon require:
- all commercial drones (regardless of weight) and all recreational drones over 250 grams to be registered with CASA. Registration will need to be renewed every year; and
- people flying drones to either hold a remote pilot licence (RePL) or have completed an online training course and passed a short safety quiz to achieve accreditation. Accreditation must be renewed every 3 years.
Fines of up to $10,500 can be imposed on those operating a drone without holding the required accreditation or an RePL.2 A fine of up to $10,500 can also be imposed for failing to comply with the requirement to register a drone.3
Deregulation of drones in 2016
In September 2016, CASA made a series of amendments to the drones Manual of Standards (Part 101) which almost completely unregulated sport and recreational uses of drones.
At the time, CASA described the amendments of Part 101 as "cutting red tape for remotely piloted aircraft", by regulating the use of a drone dependent on its weight, instead of the purpose of its operation.
As a result, more Australian businesses could use "small" drones for commercial operations, bypassing the requirements obtaining CASA certifications. This deregulation led to exponential growth in the number of pilots operating drones for commercial purposes without a RePL and the requisite training, which inevitably created greater risk.
Why the change now?
The number of drones being operated in Australia is unknown, but CASA speculates that over one million drones are currently operating in Australia. With a significant number of drones being flown across the country, many of which are classified as "recreational" without being licenced and its operators being properly trained, CASA seems to have back flipped on its deregulation strategy with the introduction of the new drone registration and accreditation laws.
CASA already has introduced extensive safety education and awareness campaigns and resources available to the public to assist flyers of drones in understanding the safety risks and rules for safe operations. Despite this, many drone flyers remain oblivious to the laws that apply when flying a drone. Additionally, a small number of drone flyers deliberately contravene the laws as they know that historically it has been difficult to trace the drone back to the flyer if an accident occurs.4
Drones have the potential to cause serious injury to people or property and interfere with other aircrafts. A prime example of the inconvenience and economic loss which can be caused by a drone is the closure of closure of Gatwick Airport a few days before Christmas last year following multiple sightings of illegal drones, disrupting flights for as many as 115,000 people at one of the busiest times in the year.5 The airport was closed for 33 hours, approximately 1,000 flights were cancelled and cost to airlines and the airport was reported to be at least £50m.6
With more and more drones being flown each year both recreationally and commercially, and the potential for harm that they can cause, drone registration will allow for:
- the identification of the flyer following a drone-related safety accident, with operators no longer being able to evade responsibility after a crash, as authorities will be able to trace flyers with their registration details;
- government authorities to access CASA records to address social nuisance, privacy, security and noise concerns; and
- stolen or lost drones to be returned to the owner if found.
Commercial drone operators must register their drones from November 2019, and recreational drones over 250 grams will be required to be registered from March 2020.7
For commercial drones, the cost of registration will vary depending on the purpose of the flying. Annual registration fees will be in the range of $100-160 per drone. Although this seems a reasonable fee, for a mining company which may have a fleet of 50 or more drones, the cost will soon mount up, particularly as these costs are in additional to the fees for holding a RePL and remotely piloted aircraft operator certificate (ReOC).
For recreational drones, the annual registration fee will be around $20.
What do the new rules mean for commercial operators?
Register before you fly
Commercial operators flying drones in the very small category (250 grams to less than 2kg) can currently be operated without a RePL or ReOC provided that they are operated in accordance with certain standard operating conditions.
Many commercial operators such as farmers and mining companies also currently fly drones under the 'landholder rule' which basically means that they do not need a RePL or ReOC to fly over their own land provided that certain conditions are met.
Starting from November 2019, these drone operators will now be required to obtain accreditation and register their drones before they can fly.
Greater exposure to risk
Given that registered drones will be able to be readily traced by CASA back to the owner, now more than ever drone operators need to ensure that they identify all relevant risks associated with their drone operations and have procedures and processes in place to address those risks.
Farmers, mining companies and other commercial enterprises who purport to operate drones in accordance with the 'landholder rule' should carefully assess their operations to ensure compliance.
For example, large organisations which hold assets in different entities may be surprised to learn that their operations may not fit within the strict requirements of the 'landholder rule'. If an accident occurs and the drone operations have not be conducted in accordance with CASR requirements, the operator's insurance company may use this as a grounds for refusing a claim.
Too often drone operators concentrate only on CASR regulatory requirements and forget about other areas of legal risk associated with drone operations. A decision of the High Court8 earlier this year confirmed that aircraft operators (which would include drone operators) are required to comply with work health and safety laws as well as the aviation safety standards contained in the Commonwealth aviation legislation.
A thorough legal risk assessment of drone operations is therefore recommended to ensure compliance with the myriad of laws which apply to drone operations, from work health and safety requirements, trespass, nuisance, negligence, privacy issues, compliance with the laws in relation to the radio frequency within which drones operate, and many more. These other areas of potential drone liability are often the greatest source of risk for drone operators, with ill informed company officers potentially exposing themselves and their organisations to hefty fines and imprisonment.
Will it work practically?
Whilst the new measures will theoretically assist with the identification of "rogue" pilots who evade responsibility after a crash, the system largely depends on drone users doing the right thing by registering their drones and undertaking the accreditation.
Based on track record, CASA has been taking a reactive approach by relying on public complaints before initiating investigations, and it is clear that CASA will only investigate safety breaches where there is sufficient evidence such as photos or video footages. This is also reflected in CASA's history of minimal enforcement of the regulations against drone pilots. With the lack of significant penalties, it is difficult to deter the dangerous and unlawful use of drones.
The deregulation in drone usage back in 2016 is due to the fact that CASA is arguably not adequately resourced to monitor drone use and enforce rules regarding their operation. The reality is, it is unlikely that CASA will have the resources to ensure drone operators are adhering to the new registration and accreditation scheme, nor will it be able to to proactively "police" drone related incidents.
Will the new registration and accreditation scheme be an effective solution to curb reckless operation of an easily accessible gadget that is capable of large-scale disruption? We can only wait and see when the scheme rolls out. We will provide another update in this space a few months into the implementation of the scheme.
1 The Civil Aviation Safety Amendment
(Remotely Piloted Aircraft and Model Aircraft – Registration
and Accreditation) Regulations 2019 (Cth) makes amendments to
the Civil Aviation Safety Regulations 1998 (Cth) relating to
registration and accreditation.
2 Civil Aviation Safety Regulations 1998 (Cth) s 101.374B.
3 Civil Aviation Safety Regulations 1998 (Cth) s 47.096A.
4 Explanatory Statement, Civil Aviation Safety Amendment (Remotely Piloted Aircraft and Modal Aircraft – Registration and Accreditation) Act 2019 (Cth), page 6.
5 ibid page 10.
6 ' London's Gatwick airport shut by 'deliberate' drone raid amid holiday rush', The Sydney Morning Herald (online), 20 December 2018 < HTTPS://WWW.SMH.COM.AU/WORLD/EUROPE/LONDON-S-GATWICK-AIRPORT-SHUT-BY-DELIBERATE-DRONE-RAID-AMID-HOLIDAY-RUSH-20181220-P50NKP.HTML >.
7 Simon Calder, ' Gatwick drone attack may have been inside job, says Airport Chief', Independent (online), 15 April 2019 < HTTPS://WWW.INDEPENDENT.CO.UK/TRAVEL/NEWS-AND-ADVICE/GATWICK-DRONE-ATTACK-LATEST-POLICE-SUSPECT-FLIGHT-DELAY-EASYJET-A8870131.HTML >.
8 See Explanatory Statement, Civil Aviation Safety Amendment (Remotely Piloted Aircraft and Model Aircraft – Registration and Accreditation) Act 2019 (Cth): RPA Operator's Certificate (ReOC) holders (registration only) and Excluded RPA operators (accreditation and registration) will commence in November 2019; Recreational model aircraft operators (accreditation and registration) will commence in March 2020.
9 The definition of very small RPA in s 101.022 of the Civil Aviation Safety Regulations 1998 (Cth) is amended by s.1 of Schedule 2 of the Civil Aviation Safety Amendment (Remotely Piloted Aircraft and Model Aircraft – Registration and Accreditation) Act 2019 (Cth) from 4 November 2019 (or a later day before 4 May 2020 if determined by the Minister), to increase the minimum weight of a very small RPA from 100g to 250g.
10 Work Health Authority v Outback Ballooning Pty Ltd  HCA 2
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.